' A case was registered on 30-9-1976 against the appellant Abbas Jamali and co-accused Chakar Jamali under section 307/34, P.P.C. F.I.R. Was lodged by complainant All Mardan injured at 13-45 p.m. At Police Station Daur. The F.I.R. Was recorded by A A.S.I. Muhammad Ibrahim Babar of Police Station Daur. The F.I.R. Is reproduced herewith:- "I own land in Deh 65 Nusrat which I used to cultivate myself. My wife is ailing since 3/4 days. I came at Bandhi town for taking medicines for her. My brother Ghulam Hyder was also with me. I went to the Clinic of Dr. Muhammad Hussain for taking medicines of Bandhi town while my brother remained in the bazar for taking provisions. After getting medicines etc. From Dr. Muhammad Hussain, when I arrived near the shop of Sahib Khan, I found my brother Ghulam Hyder was coming from the opposite direction. I also found Abbas Jammali and Chakar Jamali were standing together. Abbas asked me from a distance saying that I could not escape. Saying so, he took out the pistol from his fold and opened direct shot at me which hit on my both hands. On receiving fire- shot, I started running inside.
' In the mean while he fired another shot at me from behind which (pellets) struck on my back and on the left side of head above the ear which bled. I raised cries which attracted to A.S.I. Muhammad Ibrahim Babar and H.C. Muhammad Bachal Bukhari of Police Station Daur. Immediately they captured accused Abbas Jamali alongwith his pistol while the other accused Chakar Jamali escaped away. In the meanwhile, Dost Muhammad Jamali and other persons came there. About two months back, the quarrel had been with accused over same matter in between our Jamali party and Shakhanis in which Jan Muhammad Jamali, the brother-in-law of accused Abbas, had been killed. Due to that enmity, the above accused have injured me by causing pistol shots with intention to commit my Murder. My brother Ghulam Hyder has carried me to the P.S. I lodge complainant, justice be done."
' Apart from the complainant Ali Mardan, three other main witnesses were examined namely, Dost Muhammad Jamali, A.S.I. Muhammad Ibrahim Babar and Head Constable Muhammad Bachal. The medical evidence was given by Dr. Abdul Karim. By judgment, dated 13-12-1979, the learned Sessions Judge, Nawabshah acquitted co-accused Chakar but finding the appellant Abbas Jamali guilty of the offence under section 307, Part 2, P.P.C. And 13-D, Arms Ordinance, sentenced the appellant to imprisonment for 5 years and to pay a fine of Rs,500 or in default undergo R.I. For six months more for the offence under section 307/2, P.P.C. And R.I. For 12 months for offence under section 13-D of Arms Ordinance. Being aggrieved by the judgment, dated 13-12-1979 of the learned Sessions Judge, Nawabshah the appellant Abbas has filed this appeal under section 410, Cr.P,C. I have heard Mr. Rasheed A. Rizvi, learned counsel for the appellant and Mr. Niaz Ahmed Khan, Advocate for the State.
2. Several persons were reported to have seen the incident or have arrived at the scene immediately after the firing according to the F.I.R. But apart from two police witnesses, only complainant All Mardan and Dost Muhammad were examined by the prosecution. The complainant and Dost Muhammad have not supported the prosecution at all. They have not implicated the appellant. According to his deposition, complainant Ali Mardan did not see who had fired at him. P.W. Dost Muhammad also does not name the appellant in his deposition. The learned trial Court has, however convicted the appellant on the testimony of the two police witnesses, namely, Muhammad Ibrahim A.S.I. And Head Constable Muhammad Bachal.
3. In this case neither the report of the Ballistic Expert nor the Chemical Examiner's report is on record. The Investigating Officer A.S.I. Muhammad Ibrahim Babar has also not stated anything about the sending of the fire-arm and the empties to the Ballistic Expert and other articles that had been recovered to the Chemical Examiner for report. There is no explanation why the fire-arm, empties and other articles were not sent to the experts and their reports obtained and then produced in evidence. One of the two Mashirs of the Wardat of arrest and recovery had been examined and he is P.W. DostMuhammad and as observed earlier, he has not supported the prosecution. Both Dost Muhammad as well as complainant Ali Mardan had been declared hostile by the Court at the request of the prosecution during their evidence.
4. Learned counsel for the appellant has also contended that although several persons were named in the F.I.R. As witnesses none apart from Dost Muhammad and All Mardan were examined.
Learned counsel has also referred to certain contradictions in the evidence of the police witnesses.
According to the F.I.R. Two shots were fired by the appellant at the complainant but according to the evidence of the police witnesses only three shots were fired and the last shot was fired in the presence of the two witnesses. According to the F.I.R. Apparently A.S.I. Muhammad Ibrahim Babar and Head Constable Muhammad Bachal had not witnessed the firing of the two shots by the appellant at the injured complainant but the two police witnesses in their evidence have deposed that they actually saw the third shot being fired by the appellant.
5. It has also been submitted by the learned counsel for the appellant that the two police witnesses appeared to be chance witnesses and as such their evidence is to be scrutinized with great caution. According to A.S.I. Muhammad Ibrahim Babar, he was posted at Police Station Daur but at the time of the incident he was in Bandhi where he had gone alongwith Head Constable Muhammd Bachal in connection with some enquiry. In spite of being asked in cross-examination, A.S.I. Could not give any detail about the enquiry in respect whereof he and Head Constable Muhammad Bachal had gone to Bandhi Town.
6. In my view, on the evidence on record, it was safe to convict the appellant on the evidence of the two police witnesses. As observed earlier, neither the complainant Ali Mardan nor P.W. Dost Muhammad have implicated the appellant at all. Then for reasons best known to the police, neither the fire-arm and empties nor other articles were sent to the Ballistic Expert and Chemical Examiner for report. These reports are not on record, and accordingly the presumption is raised that such articles were not sent for the reports of the Ballistic Expert and the Chemical Examiner. No explanation has been given at all about not sending these articles to the experts for their opinions.
In the circumstances, where the complainant and P.W. Dost Muhammad have not implicated the appellant, a doubt has been created, whether the appellant was at all the person who fired at the complainant and that if at all any gun was recovered from the appellant, whether it was the same gun which was used in the firing at the complainant. The only Mashir examined has not supported the prosecution. Then there are contradiction in the evidence of the two police witnesses. It appears from a perusal of the F.I.R. And the evidence given by the two police witnesses that the two police witnesses had not seen the incident but might have reached the Wardat after the incident had taken place. All this coupled with the fact that no other witnesses, mentioned in the F.I.R., were examined, made it unsafe to record the conviction of the appellant. The prosecution has not established their case against the appellant beyond reasonable doubt.
' This appeal has to be allowed.
7. Criminal Appeal No,8/80 is allowed and the judgment, dated 13-12-1979 convicting the appellant is set aside. The appellant is on bail from this Court. His bail bonds are discharged.